In February 2024, the Canadian government introduced Bill C-63, known as the Online Harms Bill. As per the Government’s official stand, the bill was introduced to protect individuals, especially children, from online hate speech and other harmful content. However, several sections of the bill have come under critics’ scrutiny because of its overreach and potential harm to freedom of speech. Critics argue that it would impose an unprecedented control on the freedom of expression.
First, let’s discuss the section on “hate speech” in the bill. As per the proposed bill that is undergoing readings in the Canadian Parliament, Justin Trudeau-led government is all set to penalise individuals for ‘hate speech’ even if it was made years ago. The bill, as outlined in the inserted text, would amend Canadian law to address the issue of hate crimes strictly. The main focus remains on increasing the severity of penalties for crimes that allegedly are motivated by hatred towards certain protected groups.
Enhanced Penalties for Hate-Motivated Offences in Bill C-63
Bill C-63 specifically noted that whenever anyone commits an offence under any Act of Parliament which is motivated by hatred based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, would be considered an indictable offence. The penalty for such an offence can be as severe as life imprisonment. That means if you say anything against those who believe “men can menstruate”, it might be seen as a hate crime and you will get in trouble in Canada.
Definition of Hatred
As per Bill C-63, the definition of hatred is based on the existing legal definition of hatred as per sections 319 and 318 of the Criminal Code of Canada.
Exclusion Clause
There is one exclusion clause in the bill that says that not every act that might humiliate, discredit, hurt, or offend someone may come under the definition of hatred. Though it appears that the bill attempted to distinguish between genuinely hateful actions and those that might have unintentionally caused emotional distress, in totality it would be hard for the “accused” to explain their stand.
Reactions from experts and legislatures on Bill C-63
Historian Dr Muriel Blaive labelled the bill as “extremely problematic”. He highlighted the retroactive nature of the bill that could allow for the prosecution of the individuals based on the statements that were made in the past and at that time they were not deemed as “illegal”. He described the bill as a betrayal of Western legal traditions that say that a person can only be punished under laws that were active at the time of the offence.
Furthermore, Bill C-63 has proposed to establish several new bureaucratic entities including the Digital Safety Commission and the Digital Safety Ombudsperson. These entities would have the power to investigate complaints and impose heavy penalties on individuals as well as operators. Notably, in the case of a person, the penalty has been proposed to a maximum of 6% of the global revenue or CAD 10 million and in the case of an operator it can go as high as 8% of the global revenue or CAD 25 million, whichever is higher. It has raised concerns that there would be over-regulation and it can potentially put a strain on the legal system of the country which is facing an immense burden already.
Life imprisonment
One of the most drastic elements of the bill is the creation of a new hate crime offence, which could result in life imprisonment if an act is motivated by hate. Notably, the bill reinstates Section 13 of the Canadian Human Rights Act that allows the Human Rights Commission of Canada to oversee cases of hate speech. This section, as per the critics, may lead to subjective interpretations of what can be deemed as hate speech leading to potential fines of up to CAD 50,000 without any possible procedural safeguards that are generally found in criminal law.
MP Rachael Thoman of Lethbridge has opposed the bill. In a post on X, Thomas stated that while the protection of children is a commendable goal, the bill does very little to achieve it. Instead, it would impose severe restrictions on free speech. Thomas warned that this bill would have a chilling effect on public discourse and may lead to potential misuse in the form of revenge accusations.
Why India needs to be careful
India finds itself at a critical juncture where the principles of justice and the preservation of civil liberties are being put to a severe test, especially when it comes to handling hate speech and the responses it provokes. If we talk about recent cases, a concerning precedent was set in the case of former Bharatiya Janata Party (BJP) spokesperson Nupur Sharma, where the Supreme Court of India, through its oral observations, suggested that she was ‘responsible’ for the subsequent violent events in the country including the riots and murders, giving a clean chit to the actual culprits who were doing the rioting and murdering.
Though the observations did not find their way in the final order, the implications and the repercussions of the statement are felt even today and it will continue to affect the narrative for decades to come which is deeply troubling. This approach can be seen as aligning with the concept of the “tyranny of the intolerant,” where the definition of hate speech is determined on the level of outrage it incites rather than the inherent nature of the speech itself.
The stance taken by the judiciary not only undermines the objective legal standards but also backs those who would resort to violence under the guise of being offended. The real danger here is the potential normalisation of violence as a legitimate response to speech, with the judiciary inadvertently legitimating the most violent reactions as benchmarks for legal scrutiny.
Nupur Sharma faced a severe backlash for a statement she made about Islam and Prophet Mohammed in reply to provocative statements during a debate on Times Now made by penalist Taslim Ahmed Rehmani. Alt News’ co-founder Mohammed Zubair intentionally edited the clip cut out Rehmani’s provocative statement and published only the part where Sharma was replying to him as “hate speech” against the Prophet.
The campaign initiated against Sharma was so well-orchestrated that it created national and international ripple effects resulting in the suspension of Sharma from the party. Furthermore, Kanhaiya Lal in Rajasthan and Umesh Kolhe in Maharashtra were murdered for supporting Sharma on social media. When Sharma went to the Supreme Court seeking clubbing of FIRs against her, the court made the infamous observations and blamed her for the riots and murders instead of blaming Islamists who were the actual cause.
The judicial attitude has the risk of creating an environment where the free speech of the section of the society that does not react violently is unduly curtailed. The fear of potential violent backlash could deter people from expressing legitimate opinions that could be controversial according to a specific group of people. Canada’s law against hate also reminds us of the anti-communal violence bill that Congress attempted to bring potentially putting Hindus in the line of fire. Experts and legislatures who opposed the bill argued that according to the bill, no matter who started the violence, in the end, Hindus would have been prosecuted.
India needs to be vigilant against judicial and parliamentarian overreach. Political parties like Congress do not have the edge to come back in power following the ongoing Lok Sabha Elections 2024 but that does not mean they would not attempt to bring such laws in the state where they hold the power. Such overreach threatens to erode civil liberties and gives power to anti-democratic elements within the society. As a nation, the legal framework of the country must evolve to protect free expression within the purview of curbing hate speech without capitulating to the pressures of those who are intolerant. Simultaneously, the citizens of the country must ensure freedom of speech and expression is never absolute and they should practice constraint wherever required.
